Gonzalez v HMC Times Square Hotel, L.P.

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Gonzalez v HMC Times Square Hotel, L.P. 2017 NY Slip Op 31834(U) August 28, 2017 Supreme Court, New York County Docket Number: 157909/2014 Judge: Richard F. Braun Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 08/31/2017 02:31 PM 1] NYSCEF DOC. NO. 228 INDEX NO. 157909/2014 RECEIVED NYSCEF: 08/31/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 23 -------------------------~---------------X FELIX GONZALEZ, Index No. 157909/2014 Plaintiff, OPINION -againstHMC TIMES SQUARE HOTEL, L.P., TURNER CONSTRUCTION COMPANY and ALL STA TE INTERIOR DEMOLITION INC., Defendants. - - - - - - - - - - - - - ,;, - - - - - - - - - - - - - - - - - - -- - - - - - - - -X HMC TIMES SQUARE HOTEL, L.P. and TURNER CONSTRUCTION COMPANY, Third-Party Plaintiffs, -againstALL STATE INTERIOR DEMOLITION and METROPOLITAN ENTERPRISES, INC., Third-Party Defendants. -----------------------------------------X ALL STATE INTERIOR DEMOLITION, Second Third-Party Plaintiff, -againstTOTAL SAFETY CONSULTING, L.L.C., Second Third-Party Defendant. -----------------------------------------X . RICHARD F. BRAUN, J.: This is a personal injury action arising out of an accident 'at a construction site sounding in common law negligence, and violations of the Labor Law §§200, 240, and 241. Plaintiff was injured during demolition work when plywood and attached aluminum framing fell from a building facade and struck plaintiff. Plaintiff moves for partial summary judgment on liability under Labor Law § 240(1), and Labor Law§ 241(6) against defendant HMC Times Square Hotel, L.P., the owner, and /f .. 2 of 6 , [*FILED: NEW YORK COUNTY CLERK 08/31/2017 02:31 PM 2] NYSCEF DOC. NO. 228 INDEX NO. 157909/2014 RECEIVED NYSCEF: 08/31/2017 Turner Construction· Company, the general contractor (defendants): A party moving for summary judgment must show prima facie an entitlement to judgment as a matter oflaw by tendering sufficient evidence to demonstrate the absence of any material issues of fact (Fr!ends ofThayer Lake LLC v Brown., 27 NY3d 1039, 1043 [2016]; Pokoikv Pokoik, 1 is AD3d 428 [1st Dept 2014]; CPLR 3212 [b]). To defeat summary judgment, the party opposing the motion has to show that there is a material question(s) of fact that requires a trial (Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]; Kershaw v Hospital for Special Surgery, 114 AD3d 75, 82 [l51 Dept 2013]; see Hoover v New Holland N Am., Inc., 23 NY3d 41, 56 [2014]). "Labor Law § 240 ( 1) imposes a nondelegable duty and absolute liability upon owners or contractors for failing to provide safety devices necessary for protection to workers subject to the risks inherent in elevated work sites who sustain injuries proximately caused by that failure" (Jock v Fien, 80 NY2d 965, 967-968 [1992][ citations omitted]). This statutory duty is not diminished by contributory fault (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]), and is imposed regardless of whether the owner, general contractor, or statutory agent with the authority to control actually exercises supervision or control ove~ the plaintiffs work (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993]). "Proper protection" requires that the device must be appropriately placed or erected so that it would have safeguarded the employee (see Bland v Manocherian, 66 NY2d 452, 460 [1985]), and that the furnished device itself must be adequate to protect against the hazards entailed in the performance of the particular task to which the employee was assigned (see Bland v Manocherian, 66 NY2d at 461 ). As the Court of Appeals explained in Fabrizi v 1095 Ave of Ams., L.L.C. (22 NY3d 658, 662-663 [2014] [internal quotation marks and citations omitted]): 2 3 of 6 [*FILED: NEW YORK COUNTY CLERK 08/31/2017 02:31 PM 3] NYSCEF DOC. NO. 228 INDEX NO. 157909/2014 RECEIVED NYSCEF: 08/31/2017 In order to prevail on summary judgment in a section 240( 1) "falling object" case, the injured worker must demonstrate the existence of a hazard contemplated under that statute and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein. Essentially, the plaintiff must demonstrate that at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking. "[T]he single decisive qu~stion is whether plaintiffs injuries '_Vere the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 602 [2009]). "Once the plaintiff makes a prima facie showing the burden then shifts to the defendant, who may defeat plaintiffs motion for summary judgment only if there is a plausible view ofthe evidence--enough to raise a fact question--that there was no statutory violation and that plaintiffs own acts or omissions were the sole cause of the accident" (Blake v Neighborhood Hous. Serv. of N Y City, 1 NY3d 280, 289 n 8 [2003]). Plaintiff has made a prima facie showing of his entitlement to partial summary judgment as to liability on his Labor Law § 240(1) claim, and defendants have failed to raise an issue of fact to the contrary. Plaintiff has come forward with evidence showing that plywood panels on the building's facade about 10 meters above the ground were partially removed by employees of defendant Allstate Interior Demolition (Allstate). The remaining portion of the panels were loose, and the Allstate employee, Jose Cardenas, told an Allstate foreman and Turner Construction Company laborers that the panels could fall and told the foreman that they should be completely removed because they posed a danger of falling from the wind. They were not removed. No braces or shores were employed to secure the panels. The defendants elected instead to use a preventive tape barrier on the ground below the loo~e panels, but without blocking off an exit and walkway in the area. Approximately two hours later, plaintiff exited from the unprotected doorway and was struck by a falling facade panel and framing. 3 4 of 6 [*FILED: NEW YORK COUNTY CLERK 08/31/2017 02:31 PM 4] NYSCEF DOC. NO. 228 INDEX NO. 157909/2014 RECEIVED NYSCEF: 08/31/2017 Thus, plaintiff has shown that he was injured during demolition work of a building when the plywood facade panel and aluminum framing that were not adeguately secured fell on him in violation of Labor Law § 240( 1) (see Matthews v 400 Fifth Realty LLC, 111 AD3d 405 [1st Dept 2013] ["The evidence shows that plaintiffs injuries flowed directly from the application of the force of gravity to the grate, and were caused by defendants' failure to adequately secure the grate so as to prevent it from falling" (internal citationomitted)]; Arnaudv 140 Edgecomb LLC, 83 AD3d 507, 508 [1st Dept 2011] ["plaintiff was on the second floor, with his arms outstretched through a window to grab the wood as it was lowered, he was suddenly struck by a plank .... the wood was an object that required securing for the purposes of the undertaking"]; Greaves v Obayashi Corp., 55 AD3d 409 [1st Dept 2008] ["accident clearly fell within the scope of Labor Law § 240( 1), as the evidence shows plafotiff was struck by falling objects that could have been, but were not, adequately secured by one of the devices enumerated in the statute"]). Moreover, no catch platforms, safety nets or other overhead protection to catch falling objects were employed(Cardenas EBT, exhibit B to reply, at 68) (cf Tylutki v Tishman Techs., 7 AD3d 696, 696 [2"d Dept2004] ["It is undisputed that no protective device designed to catch the falling pieces of pipe was utilized in connection with the work"]; Heide/mark v State of New York, 1 AD3d 748, 749 [3'd Dept 2003] ["no safety devices, such as a sling, hanger or rope, were provided to secure this drain pipe and protect these workers from the hazard of the drain pipe falling while being dismantled"]). While Narducci v Manhasset Bay Assoc. (96 NY2d_259, 268 [2001]) referred to an object "being hoisted or secured", the Court of Appeals has made clear that '"falling object' liability under Labor Law § 240( 1) is not limited to cases in which the falling object is in the process of being hoisted or secured" (Quattrocchi v FJ Sciame Constr. Corp., 11 NY3d 757, 758-759 [2008]), but 4 5 of 6 [*FILED: NEW YORK COUNTY CLERK 08/31/2017 02:31 PM 5] NYSCEF DOC. NO. 228 INDEX NO. 157909/2014 RECEIVED NYSCEF: 08/31/2017 also applies where the falling object "required securing for the purposes of the undertaking" ( Outar v City ofNew York, 5 NY3d 731, 732 [2005], affg 11 AD3d 593 [2"d Dept. 2004]). Plaintiff's use of the exit adjacent to the demolition work is not sufficient to raise an issue . of fact as to whether plaintiff was the sole proximate cause of his injury. There is no evidence that plaintiff was instructed to not use that stairway and disregarded such direction for no good reason (see Cardenas v One State St., LLC, 68 AD3d 436, 43 7-438 [1st Dept 2009]; Kosavick v Tishman . . Constr. Corp. ofNY, 50 AD3d 287, 289 [l5t Dept 2008]; cf Gallagher v New York Post, 14 NY3d 83, 88 [201 O] ["no evidence in the record that G~llagher knew where to find the safety devices that NYP argues were readily available or that he was expected to use them"]). To the contrary, the evidence Is that the doorway was intentionally left useable when preventive tape was put up, and that no one was ever told not to use the stairway, nor was access to the area restricted. Thus, plaintiff is entitled to partial summary judgment on liability on the Labor Law § 240(1) claim. In view of the foregoing, the branch of the motion seeking summary judgment on plaintiffs Labor Law§ 241(6) claim is academic (Messina v City o/New York, 148 AD3d 493, 494 [1st Dept 2017]). Accordingly, by separate decision and order ofAugust 23, 2017, plaintiff was granted partial summary judgment as to liability on his Labor Law §240(1 ). Notwithstanding plaintiff's request for an immediate trial, there has been no motion for or showing that plaintiff is entitled to a trial preference (CPLR 3403). Consequently, the trial on damages will be held in the ordinary course when the action is called on the trial calendar. ~:;:~ Dated: New York, New York August 28, 2017 RICHARD F. BRAUN, J.S.C. 5 6 of 6

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